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  • Time to file motion?

    Ex and I signed a separation agreement in Aug that was filed with the court. It outlined everything from access, support, etc. He agreed to all access transportation responsibilities and costs until which time I have a car and insurance in my name. Once that happens, our agreement says I will only pick the children up from his place (1.5 hours away) at the end of the first access weekend each calendar month. This was signed in August and we both had ILA.

    Now he has decided he would like 50/50 driving and has said he will file motion if I will not agree. Nothing has changed. No "material change in circumstance". He has been doing all the driving since he agreed to our move in 2011. I am driving a 30 year old car lent to me and insured by my father. Ex took the family SUV when he left.

    Is there a time limit he has to wait before filing a motion on something he agreed to 3 months ago? His lawyer has convinced him he will win and a judge will award him costs. He even forwarded me his lawyer's email as a scare tactic.

    My thought is that he agreed to this in August and now just wants to be a pain. Why would a judge switch it?

    (Btw, it changes nothing for the kids. They would be in the car the exact same amount of time.)

    Thoughts?
    Last edited by SadAndTired; 11-28-2013, 02:03 PM.

  • #2
    Originally posted by SadAndTired View Post
    Ex and I signed a separation agreement in Aug that was filed with the court. It outlined everything from access, support, etc. He agreed to all access transportation responsibilities and costs until which time I have a car and insurance in my name. Once that happens, our agreement says I will only pick the children up from his place (1.5 hours away) at the end of the first access weekend each calendar month. This was signed in August and we both had ILA.

    Now he has decided he would like 50/50 driving and has said he will file motion if I will not agree. Nothing has changed. No "material change in circumstance". He has been doing all the driving since he agreed to our move in 2011. I am driving a 30 year old car lent tome and insured by my father. Ex took the family SUV when he left.

    Is there a time limit he has to wait before filing a motion on something he agreed to 3 months ago? His lawyer has convinced him he will win and a judge will award him costs. He even forwarded me his lawyer's email to him.

    My thought is that he agreed to this in August and now just wants to be a pain. Why would a judge switch it?

    (Btw, it changes nothing for the kids. They would be in the car the exact same amount of time.)

    Thoughts?
    I was told once that a minimum of 6 months must pass between final order and Motion to Change, unless it is an Emergency Motion. FLIC advised me that.

    It sounds like you're dealing with a similar personality that I am. Experience has told me that if I give him an inch, he takes a mile. It's why I'm so uncompromising on the details hammered out in the agreement. He's a "do as I say or else" person. I used to fall for it, but I don't any more.

    If he wants a change, let him bring the motion. I know it makes for difficult dealings with him, but, if you just cave and go against the agreement that was presumably thoughtfully made, then there was no point in that agreement, or any other one moving forward.

    Just my opinion.

    Comment


    • #3
      I think the general concensus is that the one who moves away is responsible for the driving, but since he consented to the move, I think sharing the driving is the way to go. He either picks up to start his time and you pick up to start yours or you both meet in a location in the middle.

      Has his cs been decreased at all due to him having to do all the travelling? If you now have a license and a car, I think it would be beneficial to share the driving rather than go to court over something simple.

      Comment


      • #4
        I'd ignore the scare tactics. My ex uses that line all the time. It's never happened, and he's never followed through on any of the threats.

        Berner - it really doesn't matter what the norm would be, it's in the agreement. You shouldn't have to go back and argue the point all over again, it's been settled. Unless they prove you made the agreement in bad faith, it's a binding agreement until a Motion to Change is brought forward.

        He's stuck with what he agreed to and until he files a Motion to Change, I'd keep referring him back to the relevant paragraph in the agreement.

        Comment


        • #5
          Originally posted by MS Mom View Post
          I'd ignore the scare tactics. My ex uses that line all the time. It's never happened, and he's never followed through on any of the threats.

          Berner - it really doesn't matter what the norm would be, it's in the agreement. You shouldn't have to go back and argue the point all over again, it's been settled. Unless they prove you made the agreement in bad faith, it's a binding agreement until a Motion to Change is brought forward.

          He's stuck with what he agreed to and until he files a Motion to Change, I'd keep referring him back to the relevant paragraph in the agreement.
          I still stand by what I said. What are the reasons for NOT renegotiating to avoid court again? The simple fact that it is already in the agreement? Two people can always renegotiate and court is a 50-50 chance. I guess it comes down to whether the OP wants to try their luck in court. Remember there is nothing stopping the ex from calling her and saying he is not bringing the kids back but she is welcome to pick them up.

          Comment


          • #6
            I understand what you are saying Berner but why would he agree in August and be fine with it and get to threaten court now? The car is old and prone to breaking down. My father has lent it to me to take kids to school, go to work, etc. It would not be the best on the QEW to Toronto every other weekend.... And why make a legal agreement and get lawyers to hammer it out if he won't fulfil his part anyway?

            Ms Mom, I thought it was 6 months too. Thanks for your input. Hopefully others will confirm.
            Last edited by SadAndTired; 11-28-2013, 02:19 PM.

            Comment


            • #7
              Btw, I had the old car prior to August when he signed. The borrowed car situation is not new.
              Last edited by SadAndTired; 11-28-2013, 02:25 PM. Reason: typos

              Comment


              • #8
                Unfortunately people agree on things all the time, which are can not be enforced. There is no law saying how travel is split. If this goes to court and he has made an attempt to settle outside of court there is always the chance of having the pay costs.

                We had a 16 year old car for 2 years, we had many issues with it, many times we were stuck on the side of the highway unfortunately we still had to meet in the middle if we wanted to see my partners kids.

                I am just trying to give a different side of the coin. Yes you may have agreed but what choice did he have? You didn't have a car or license he had to do the driving. Now you do. Again, what is the reason you don't want to meet or pick up, other than he agreed in August?

                Comment


                • #9
                  Originally posted by Berner_Faith View Post
                  Unfortunately people agree on things all the time, which are can not be enforced. There is no law saying how travel is split. If this goes to court and he has made an attempt to settle outside of court there is always the chance of having the pay costs.

                  We had a 16 year old car for 2 years, we had many issues with it, many times we were stuck on the side of the highway unfortunately we still had to meet in the middle if we wanted to see my partners kids.

                  I am just trying to give a different side of the coin. Yes you may have agreed but what choice did he have? You didn't have a car or license he had to do the driving. Now you do. Again, what is the reason you don't want to meet or pick up, other than he agreed in August?
                  What choice did he have!?? What??

                  I never said I didn't have a license. I've had a license for over 20 years. When he left he took the family SUV. I didn't have a car at that time. But shortly thereafter I borrowed my father's car. I had the car and a driver's license when he signed in August. If it was an issue for him then he shouldn't have signed the agreement

                  Perhaps since all issues that were signed for in August can be reevaluated, I think I would like to go back and change the very specific termination date for spousal support. Since our agreement means little and can be renegotiated so easily Berner, I' d like to go back and add a few years to SS.

                  And what is his reason for wanting a change?? Certainly nothing that didn't exist in August.
                  Last edited by SadAndTired; 11-28-2013, 03:04 PM.

                  Comment


                  • #10

                    We had a 16 year old car for 2 years, we had many issues with it, many times we were stuck on the side of the highway unfortunately we still had to meet in the middle if we wanted to see my partners kids .
                    That would have put that car in the late 90s.

                    The car I currently drive is 1985!!

                    My kids treat me like Uncle Buck and I am not allowed to use the kiss and ride line at school because of their embarrassment. LOL.

                    Comment


                    • #11
                      Originally posted by Berner_Faith View Post
                      Unfortunately people agree on things all the time, which are can not be enforced. There is no law saying how travel is split. If this goes to court and he has made an attempt to settle outside of court there is always the chance of having the pay costs.

                      We had a 16 year old car for 2 years, we had many issues with it, many times we were stuck on the side of the highway unfortunately we still had to meet in the middle if we wanted to see my partners kids.

                      I am just trying to give a different side of the coin. Yes you may have agreed but what choice did he have? You didn't have a car or license he had to do the driving. Now you do. Again, what is the reason you don't want to meet or pick up, other than he agreed in August?
                      I think the reason is clear - no reliable form of transportation, costs.

                      He needs to adhere to the agreement he made or make the steps necessary to change it. It's only been 3 months. What could have changed? A material change in circumstance would need to be shown in order to open up the agreement, so if that hasn't happened, why would you be open to negotiation?

                      He can choose to not bring the kids back, but that threat shouldn't be a reason to cave into his demands. He isn't entitled to do that either.


                      Perhaps if he discussed, rather than threatened, it would be an easier negotiation. B

                      Comment


                      • #12
                        Originally posted by SadAndTired View Post
                        What choice did he have!?? What??

                        I never said I didn't have a license. I've had a license for over 20 years. When he left he took the family SUV. I didn't have a car at that time. But shortly thereafter I borrowed my father's car. I had the car and a driver's license when he signed in August. If it was an issue for him then he shouldn't have signed the agreement

                        Perhaps since all issues that were signed for in August can be reevaluated, I think I would like to go back and change the very specific termination date for spousal support. Since our agreement means little and can be renegotiated so easily Berner, I' d like to go back and add a few years to SS.

                        And what is his reason for wanting a change?? Certainly nothing that didn't exist in August.
                        You don't have to get so defensive. All I am saying is agreements are renegotiated all the time. Only you can decide if it is worth a fight in court to fight over something like travel.

                        SS is something totally different, there are guidelines for that, there are no guidelines for travel. Personally I just think its a silly thing to fight about, but if you want to go to court over it, that is your choice. What will you do if he decides not to bring the kids back on his access time?

                        Comment


                        • #13
                          Originally posted by Berner_Faith View Post
                          You don't have to get so defensive. All I am saying is agreements are renegotiated all the time. Only you can decide if it is worth a fight in court to fight over something like travel.

                          SS is something totally different, there are guidelines for that, there are no guidelines for travel. Personally I just think its a silly thing to fight about, but if you want to go to court over it, that is your choice. What will you do if he decides not to bring the kids back on his access time?
                          I think that is exactly the problem. It's a silly thing for HIM to fight about now. Silly for HIM to go to court about. Especially when he just signed an agreement in August and he was well aware of what he was signing.

                          The absurdity is on his side, not mine.

                          I really hadn't thought about what I would do if he would refused to bring back the kids. I guess I never considered that level of manipulation and immaturity to simply get his own way. He usually returns them between 15 and 45 minutes early each Sunday anyway. I guess I would wait till he brought them to school the next day, and just pick them up from there. The school is within 2 kilometers of my house. He cannot unilaterally change their school and with him returning them early, the chances of him not driving them home out of spite are very slim.
                          Last edited by SadAndTired; 11-28-2013, 03:26 PM.

                          Comment


                          • #14
                            Originally posted by SadAndTired View Post
                            ...Once that happens, our agreement says I will only pick the children up from his place (1.5 hours away) at the end of the first access weekend each calendar month. This was signed in August and we both had ILA...

                            ...Now he has decided he would like 50/50 driving and has said he will file motion if I will not agree. Nothing has changed. No "material change in circumstance". He has been doing all the driving since he agreed to our move in 2011. I am driving a 30 year old car lent to me and insured by my father. Ex took the family SUV when he left...
                            My question would be why was a move 1.5 hours away, deemed necessary, to introduce this issue in the first place, especially if "nothing has changed". It seems it did not provide a better benefit or job opportunity, if basic transportation seems to be an issue two years later, and it does seem necessary, given this distance between the childrens' homes. Was this for extended family then?

                            50/50 driving seems fair. It's also equally "wear and tear" on his vehicle too. How many times are you doing exchanges per month, if you live 1.5 hours away. I assume the kids go to school in one area or the other?

                            A judge would likely find the 1.5 hours excessive, if it was happening too much during the week.

                            Comment


                            • #15
                              Originally posted by SadAndTired View Post
                              ...The absurdity is on his side, not mine...
                              You likely own part of it as well if you think 50/50 shared driving for what seems like weekend exchanges is unfair for you?

                              Comment

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